Friday, 9 March 2018

Dispute settlement and the ECJ in the draft withdrawal agreement

Professor Steve Peers, University of Essex*

One of the most contentious
issues in EU/UK relations after Brexit is going to be the extent to which there
is still some residual connection between the UK and the EU’s Court of Justice.
At first, that issue will arise in the withdrawal agreement which is being
negotiated, a draft
of which was tabled by the EU Commission last week. It will eventually arise to
some extent also in the future relationship between the two sides, but let’s
focus on the withdrawal agreement for now.

In this blog post, I analyse the
main issues, annotate part of the proposed withdrawal agreement, and propose a
number of amendments to the text. Note that some issues raised are particularly
relevant to the acquired rights of
EU27 and UK citizens – which will be the subject of my next annotation
and analysis. (I have previously annotated and analysed the proposed text on
the transition
(implementation) period, and the Irish
border).

Structure of the withdrawal agreement

The main provisions on dispute
settlement appear in the “Final Provisions” in Part Six of the draft withdrawal
agreement (Articles 151-168).

Within Part Six, there are four
titles:

-Title I on “Consistent Interpretation and
Application” (Articles 151-156), which covers some aspects of ECJ jurisdiction,
plus also a national authority in the UK to defend EU27 citizens’ rights, and
other provisions;

-Title II on “Institutional Provisions” (Articles
157-159), which sets up the Joint Committee to monitor and apply the Agreement;

-Title III on “Dispute Settlement” (Articles
160-165), which contains provisions on the ECJ as well as unilateral sanctions;
and

-Title IV on “Final Provisions” (Articles
166-168).

However, for a full understanding
of the issues, it’s also necessary to mention some aspects of the other Parts
of the draft agreement, which comprises: the “Common Provisions” in Part One
(Articles 1-7); Part Two on citizens’ rights (Articles 8-35); the “separation
provisions” (Part Three: Articles 36-120); the transition (or implementation)
period (Part Four: Articles 121-126); the financial settlement (Part Five:
Articles 127-150); the “Final Provisions” in Part Six (Articles 151-168); and
the Protocols on Ireland and UK bases on Cyprus (the latter Protocol is blank
so far).

Broader context

As a Member State, the UK is
covered by the ordinary jurisdiction of the ECJ, which comprises, among other
things, references from national courts on the interpretation or validity of EU
law (Article 267 TFEU), direct challenges to acts of the EU institutions or
other bodies (Article 263 TFEU), and infringement actions against Member States
which have allegedly violated EU law, usually brought by the EU Commission
(Articles 258-260 TFEU).

However, it is unusual for non-EU
states to be subject to the ECJ’s jurisdiction. It only has a role when
international treaties which the EU has signed make reference to EU law. This
is hard to avoid from the EU’s perspective because according to the ECJ’s case
law, it breaches EU law for non-EU bodies to give an interpretation of EU law
which binds the EU (see Opinion
1/92 and Opinion
1/00).

Dispute settlement, ECJ and the withdrawal agreement: an overview

The first rule in the draft
withdrawal agreement relevant to the ECJ appears in Article 4(4), which
requires references to EU law in the agreement to be interpreted in accordance
with ECJ case law prior to the end of the transition/implementation period.
Article 4(5) requires subsequent ECJ
case law to be taken into account. EU law is defined broadly in Article 2, and
Article 5 states that it includes amendments to EU law going up to the end of
the transition/implementation period. Article 4(1) to (3) require that the
withdrawal agreement has the same legal effect and rules of interpretation as
when the UK was a Member State, and that it be incorporated into primary
legislation in the UK. In particular EU27 citizens must be able to invoke directly
in UK courts the rules on their acquired rights set out in Part Two of the
Agreement.

During the
transition/implementation period, the ECJ has its ordinary jurisdiction as
regards the UK (Article 126). When that period ends (the Commission proposes
the end of 2020: see Article 121), Part Three of the Withdrawal Agreement, on
separation provisions, contains a number of special rules on the ECJ’s
jurisdiction. Articles 82-87 specify that the Court will retain jurisdiction
for any cases pending at the end of the transition/implementation period, and
indeed for many cases which relate to events before that date which might be
sent to the Court afterward (Article 83). There’s a special rule if the UK does
not comply with an administrative decision of an EU body before the end of the
transition/implementation period (Article 91).

If the proposed “fallback” rules
on the Irish border apply, the ECJ have its ordinary jurisdiction as regards
the rules in the Protocol on Ireland indefinitely (Article 11 of the Protocol),
and there will be an indefinite requirement to interpret the EU law rules in
that Protocol consistently with ECJ case law (Article 12(2) of the Protocol).

As for the core rules on the ECJ
and dispute settlement, Part Six opens with special jurisdiction for the CJEU
to rule on citizens’ rights issues following requests from courts in the UK for
eight years after the end of the transition/implementation period (Article
151). The UK must set up an independent authority to help EU27 citizens enforce
those rights (Article 152). Also, the CJEU retains jurisdiction to rule on the
separation provisions and EU law aspects of the financial settlement after the
end of the transition/implementation period (Article 153).

There will be a Joint Committee
set up to monitor and implement the agreement (Articles 157-159); that’s not
contentious as such. But the difficult issue will be its role in dispute
settlement between the EU and the UK. (Disputes brought by individuals and
companies will be thrashed out in the national courts, with possible references
to the ECJ in light of its broad proposed jurisdiction).

After the end of the
transition/implementation period, a dispute about interpretation between the
parties to the agreement would first be discussed in the Joint Committee, which
could decide to ask the ECJ to decide it, if both parties agree. After three
months, if the dispute was not settled, either party could unilaterally invoke
the ECJ’s jurisdiction (Article 162). If the Court’s ruling in that case was
allegedly not complied with, the Court could be asked to rule again on the
non-compliance, this time imposing a fine (Article 163(1) and (2)). Alongside
this there would be the possibility of either side imposing sanctions on the
other (Article 163(3)).

Finally, during the
transition/implementation period, if the EU side believes that the UK had not
complied with an ECJ ruling, it could suspend some internal market benefits for
the UK. There is no corresponding power for the UK.

So far the UK has agreed to only
parts of these proposals, mainly the points concerning citizens’ rights and the
transition/implementation period, along with some aspects of the separation
provisions. (See the joint
report of the EU and UK from December, discussed here
as regards citizens’ rights and here
as regards other issues, along with my annotation
of the proposals on the transition/implementation period.) It has, in
particular, not agreed to the provisions on dispute settlement.

Comments

Are the Commission’s proposals
justified as a matter of law and policy – or are the UK’s objections to them
convincing? First of all, the provisions on EU27 citizens’ rights simply elaborate on a previous compromise
agreed between the UK and the Commission, concerning special ECJ jurisdiction
for eight years and an independent authority in the UK. On the latter point,
the Commission’s proposals could be strengthened a great deal, plus there is no
justification for delaying the creation of the independent authority until the
end of the transition/implementation period, as EU27 citizens will likely need
assistance before then. So I have suggested amendments to Articles 152 and 168
of the proposal.

Secondly, the agreed ECJ
jurisdiction during the transition/implementation
period simply reflects the overall position that EU law and the EU institutions
will apply as usual regarding the UK during this period (apart from the absence
of UK presence on the institutions). It would have been preferable to “dock”
the UK in to the EFTA Court during this period instead, where it would have its
own judge, possibly also applying the EEA Treaty for at least some period so
that is has greater input into EU law (but applies less of it). But the UK
government seems uninterested in this idea.

This brings us to the parts which
have not been agreed, and are likely to be controversial. In my view, it is
entirely understandable for the UK to aim to limit the jurisdiction of the ECJ
post-Brexit as much as possible, on the grounds that it is not a Member State
any longer and the ECJ’s jurisdiction over non-EU countries is traditionally
limited. Having said that, it’s impossible to avoid the ECJ’s own “red lines”
in its case law noted above: it breaches EU law for non-EU bodies to give an
interpretation of EU law which binds the EU. The obvious difficulty here for the
UK, given its “red line” of avoiding
future ECJ jurisdiction, is that the withdrawal agreement inevitably makes a
number of references to EU law. There might be less difficulty avoiding the ECJ
as regards the future UK/EU
relationship – but that depends upon the contested question as to how much EU
law the UK will still apply after Brexit.

Seen in that light, the Court’s
continuing jurisdiction over separation
issues (which detail how various EU laws will cease to apply to the UK)
and EU law rules in the financial
settlement provisions would be nearly impossible to avoid. Any disputes
between the UK and the EU in these provisions could only be settled by the ECJ,
due to the ECJ red line. So the jurisdiction on those issues in Article 153
probably has to stay.

It’s a different question as
regards non-judicial sanctions,
however. First of all, the prospect of unilateral sanctions by the EU against
the UK for failure to comply with a judgment during the transition/implementation
period is both unnecessary and simply obnoxious. Unnecessary because – at the EU’s own
insistence – the usual jurisdiction of the ECJ will apply during that period,
including the remedy of the ECJ imposing fines for lack of compliance with its
prior rulings. There’s no time limit problem here, since – again under the
Commission’s own proposals – cases against the UK pending at the end of the transition/implementation
period won’t simply lapse, but will be decided afterward.Obnoxious because this remedy would apply to
the EU side only (as if no EU27 Member state has ever breached EU law!), it
would hypocritically treat the UK as both a Member State and a non-Member State
at the same time, and it eschews any attempt at resolving the dispute
politically (as well as circumventing the usual requirement for the party
alleging the breach to discharge the burden of proof of proving its claim in
the ECJ). It’s not even explicit that the EU’s decision could be judicially
reviewed – although it would breach the EU principle of the rule of law if it
could not be.

Secondly, after the end of the transition/implementation
period, it’s more complicated: there would be an attempt at political dispute settlement, followed by
a possible jurisdiction for the ECJ, followed (if an ECJ ruling was allegedly not
complied with) by a request for the ECJ to apply sanctions. There’s also a
random provision allowing for more sanctions, which should be booted into legal
orbit forthwith due to its poor legal drafting.

Here there’s confusion between
treating the UK as a Member State (compulsory ECJ jurisdiction) and as a
non-Member State (sanctions). The better course would be to accept that it will
be a non-Member State – focussing, like the EEA treaty with other non-Member
States, on a potential sanction (which either side could apply) if an attempt
at dispute settlement fails. The possibility of asking the ECJ to rule could
remain as an option, limiting its jurisdiction to the interpretation of EU law.

All these comments – and some
more technical points – are spelled out in more detail in the annotated text of
Part Six attached, which also makes a number of suggestions for amendments of
the proposed text.

Barnard & Peers: chapter 10,
chapter 27

Photo credit: Irish Times

* This blog post was supported by
an ESRC Priority Brexit Grant on 'Brexit and UK and EU Immigration Policy'

References to the
Court of Justice of the European Union concerning Part Two

Where, in a case which has
commenced at first instance within eight years from the end of the transition
period before a court or tribunal in the United Kingdom, a question is raised
concerning the interpretation of Part Two of this Agreement, and where a court
or tribunal in the United Kingdom seized with that case considers that a
decision on that question is necessary to enable it to give judgment in that
case, it may request the Court of Justice of the European Union to give a preliminary
ruling on that question. The Court of Justice of the European Union shall have
jurisdiction to give preliminary rulings on such requests. The legal effects in
the United Kingdom of such preliminary rulings shall be the same as the legal
effects of preliminary rulings given pursuant to Article 267 TFEU in the Union
and its Member States.

Background: This
reflects part of para 38 of the joint report. It sets the eight-year time limit
starting from the end of the transition/implementation period, whereas that
starting point was not definitively decided in the joint report, as it noted
that discussions on the transition had yet to take place. It specifies that the
CJEU’s powers concern the whole of Part Two, not just the vaguer “interpretation
of those rights” in the joint report. As agreed, this differs from Article 267
TFEU in that final courts in the UK are not obliged as a rule to refer cases.
However, the legal effects of such rulings are the same as under Article 267.
That issue was not mentioned in the joint report, but the CJEU has ruled that
its judgments (where its jurisdiction exists) must always be binding, even as
regards non-EU states (see Opinion 1/91, para 38).
It is implicit that the Court’s other jurisdiction (notably on infringement
proceedings) will not apply.

According to Article 168, this provision – and the whole of Title I of
Part Six (Articles 151 to 156) will only apply from the end of the
transition/implementation period. That temporal limitation appears in the text
of Article 151, but not Articles 152 to 156.

Comments: It is not clear what will happen to cases pending at
the end of this eight-year period. To address such issues, I have a suggested
amendment, to add this sentence: After the end of this eight-year
period, Articles 82(2) and (3), 83(2) and 85(1) and (2) shall apply mutatis
mutandis. This would mean that the CJEU still has jurisdiction for cases
pending before it and courts in the UK at the end of that date, and confirm
that its judgments after that date will remain binding on the UK. This is
perhaps evident anyway from the final sentence and the words “commenced at
first instance within eight years” (and from “litigation brought within 8
years” in the joint report), but it is better to confirm it explicitly.

If the transition period were extended, that would in principle have
knock-on effects on this Article. It should be noted that there is no time
limit on the CJEU’s jurisdiction to rule on the application of this agreement
as regards UK citizens in the EU27. Nor is there any other limit on its
jurisdiction relating to them (ie final courts will in principle have to send
cases concerning them to the CJEU; infringement proceedings can apply).

Article 152

Monitoring of the
implementation and application of Part Two

The United Kingdom shall set up
an independent Authority to monitor the implementation and application of Part
Two. That Authority shall have the power to receive and investigate complaints
from Union citizens and their family members, and to conduct inquiries on its
own initiative, concerning alleged breaches by administrative authorities of
the United Kingdom of their obligations under Part Two. The Authority may make
its findings public. Where it considers that the administrative authority
concerned has not acted appropriately on its findings, and without prejudice to
any remedies available to the Union citizens or family members concerned, the
Authority shall have the right to bring a legal action before a competent court
or tribunal in the United Kingdom in an appropriate judicial procedure with a
view to seeking adequate redress. The Authority shall inform the European
Commission of any such legal actions brought before courts or tribunals in the
United Kingdom. It may also consult the European Commission before bringing
such legal actions and the European Commission may suggest to the Authority to
bring such legal actions.

Background: This is based on part of para 40 of the joint
report, which provides as follows:

The implementation and application of the
citizens' rights Part will be monitored in the Union by the Commission acting
in conformity with the Union Treaties. In the UK, this role will be fulfilled
by an independent national authority; its scope and functions, including its
role in acting on citizens' complaints, will be discussed between the parties
in the next phase of the negotiations and reflected in the Withdrawal
Agreement. There should be regular exchange of information between the UK
Government and the Commission.

Comments: The “scope
and functions” of this body, in the proposal, would be: a) “to receive and
investigate complaints from Union citizens and their family members”; b) “to
conduct inquiries on its own initiative, concerning alleged breaches” of the
rules by UK “administrative authorities”; and c) to “bring a legal action
before a competent court or tribunal in the United Kingdom in an appropriate
judicial procedure with a view to seeking adequate redress”, if it believes
that the administration does not react appropriately, “without prejudice to”
remedies the EU citizens and their family members have. Implicitly it will not
be able to make its own binding decisions on complaints brought to it. As for
procedural rules: the authority “may make its findings public”; it “shall inform” the Commission on legal
actions and “may consult” it beforehand; the Commission may also suggest that
the authority brings such actions.

This clause raises certain questions. In light of the recent botched
attempt to appoint Toby Young to a university regulator, without following a proper process, there might be some doubts about the
integrity of the appointment process. The authority might lack sufficient staff
and funding. At the very least, the UK should make a declaration attached to
the agreement, specifying more detail on these points. Although the power for
the authority to make its own decisions (which the government would have to
challenge) would be useful, the proposed powers (broadly comparable to the
Commission’s, although there are no details of the process as compared to
Article 258-260 TFEU on infringement proceedings) are an essential minimum, and
hopefully the UK government will not seek to weaken them.

The question arises what happens if the authority gives a disappointing
reply to a complaint, or fails to reply within a reasonable time. Is there a
remedy against the authority in that case? Must its decisions be reasoned? The
Commission may be reluctant to push this issue because there are no effective
remedies against its infringement decisions following individual complaints –
and it likes it that way. There are also questions of whether there will be
time limits upon bringing complaints, or upon the authority bringing legal
proceedings. The authority does not appear to have the power to bring
proceedings as regards general changes to the law, or to comment on them. It
seems to have the discretion whether to make its proceedings public. It is not
clear that the authority’s power to bring proceedings can lead to a remedy for
the complainant; and it would be useful if the authority could submit
observations in cases which it didn’t bring itself, in accordance with with
Articles 154 and 155.

Substantively, the definition of “family members” logically entails an
implied cross-reference to the definition in Article 8, in light of the
reference to Part Two. “Union citizens” are defined in Article 2, which applies
to the entire agreement.

Note that according to Article 168, this provision will only apply from
the end of the transition/implementation period.This seems highly objectionable, since the UK
will be rolling out a “settled status” scheme well before that time, and EU27
nationals may need the assistance this body will offer as soon as possible
after Brexit day. I have therefore suggested an amendment to Article 168. In
comparison, the Commission’s powers to apply its infringement proceedings powers
are unlimited in time.

To ensure that the powers of this authority are effective, I suggest an
amendment based on the powers of data protection authorities. It would apply
equally to the Commission, although it might be questioned whether such extra
powers alter the “essential elements” of its powers pursuant to ECJ case law. I
would argue not, since the Commission’s independence from Member States remains
intact.

Suggested amendment: The United
Kingdom shall set up an Authority to monitor the implementation and application
of Part Two. That Authority shall act with complete independence in
performing its tasks and exercising its powers in accordance with this
agreement. The United Kingdom shall ensure that the Authority has the human,
technical and financial resources, premises and infrastructure necessary for
the effective performance of its tasks and exercise of its powers.

The Authorityshall have the power to receive
and investigate complaints from Union citizens and their family members, and to
conduct inquiries on its own initiative, concerning alleged breaches by
administrative authorities of the United Kingdom of their obligations under
Part Two. It shall inform the complainant of the progress and the outcome of
the investigation within a reasonable period. [It shall have the power to order
the administrative authorities to ensure compliance with this Agreement.] It
shall give reasons for its decisions, which shall be subject to effective
judicial review.

The Authority shall make its findings
public, with the consent of the complainant. Where it considers that the
administrative authority concerned has not acted appropriately on its findings,
and without prejudice to any remedies available to the Union citizens or family
members concerned, the Authority shall have the right to bring a legal action
before a competent court or tribunal in the United Kingdom in an appropriate
judicial procedure with a view to seeking adequate redress for the benefit
of the individual(s) concerned. In other pending cases, the Authority
may submit written observations to the courts or the tribunals in the United
Kingdom. With the permission of the court or tribunal in question, it may also
make oral observations.

The Authority shall inform the European
Commission of any such legal actions brought before courts or tribunals in the
United Kingdom. It may also consult the European Commission before bringing
such legal actions and the European Commission may suggest to the Authority to
bring such legal actions. The authority may also suggest to the Commission
to commence an infringement procedure in accordance with the Treaties, and may
submit observations in accordance with Article 154.

This Article shall apply mutatis mutandis
to the Commission.

Article 153

Jurisdiction of the Court
of Justice of the European Union concerning Parts Three and Five

Without prejudice to Article 83
of this Agreement, Articles 258, 260, and 267 TFEU shall apply in respect of
the interpretation and application of Part Three of this Agreement and of applicable
Union law referred to in Article 129 and Article 131(1) or (2) of this
Agreement. To this effect, any reference made in Articles 258, 260, and 267
TFEU to a Member State shall be read as including the United Kingdom.

Comment: This gives the CJEU its jurisdiction as regards
infringement actions and preliminary rulings over cases concerning the separation
provisions (Part Three) and the references to EU financial law in Part Five
(financial settlement), which will still apply after the end of the transition/implementation
period to the extent that payments are made after that date.

According to Article 168, this provision will only apply from the end
of the transition/implementation period. The Court’s ordinary jurisdiction will
apply up until to the end of that period.

The cross-reference to Article 83 covers cases brought before the end
of the transitional/implementation period, which the CJEU will still have
jurisdiction to decide afterwards.

Article 154

Submission of
statements of case or written observations

Where a court or tribunal of a
Member State refers a question concerning the interpretation of this Agreement
to the Court of Justice of the European Union for a preliminary ruling, the
decision of the national court or tribunal containing that question shall be
notified to the United Kingdom. The United Kingdom shall be entitled to submit
statements of case or written observations to the Court of Justice of the
European Union within two months of such notification.

Background: This Article partly reflects the second sentence of para
39 of the joint report: “In the same vein, it is envisaged to give the UK
Government and the European Commission the right to intervene in relevant cases
before the CJEU and before UK courts and tribunals respectively.” The text of
this Article defines what “relevant cases” are. Note that the Article applies
to the entire withdrawal agreement, not just the citizens’ rights provisions.
According to Article 168, this provision will only apply from the end of the
transition/implementation period, although unlike Article 151 there is no final
date when it expires.

Comment: A right of intervention like this is not unusual. For
instance EFTA EEA states can (and sometimes do) state their view in CJEU cases
which are relevant to the EEA treaty. However, it is avery narrow interpretation of the concept of
“relevant cases”. Surely a case is relevant not only where it concerns the
withdrawal agreement as such, but where it concerns an EU law issue which could
impact the UK in accordance with Article 4(5), which requires the UK’s
administrative and judicial authorities to have due regard to relevant CJEU
case law decided after the end of the transition/implementation period. Also it
seems appropriate to allow the Authority set up by Article 152 to intervene
where there are issues relevant to EU27 or UK citizens, since the UK government
may be reluctant to defend their rights.

I therefore suggest two amendments. The first sentence should
read: “Where a court or tribunal of a Member State refers a question concerning
the interpretation of this Agreement, or a provision of Union law within the
scope of Article 4(5) of this Agreement…” A new sentence at the end should read: “Where the case concerns Part
Two of this Agreement, this Article shall also apply mutatis mutandis to the
Authority referred to in Article 152.”

Article 155

Participation of the
European Commission in cases pending in the United Kingdom

Where the consistent
interpretation and application of Part Two of this Agreement so requires, the
European Commission may submit written observations to the courts or the
tribunals in the United Kingdom in pending cases where the interpretation of
the Agreement is concerned. The European Commission may, with the permission of
the court or tribunal in question, also make oral observations. The European
Commission shall inform the United Kingdom of its intention to submit
observations before formally doing so.

Background: This Article partly reflects the second sentence of para
39 of the joint report: “In the same vein, it is envisaged to give the UK
Government and the European Commission the right to intervene in relevant cases
before the CJEU and before UK courts and tribunals respectively.” The text of
this Article defines what “relevant cases” are. Unlike Article 154, this
Article does not apply to the entire withdrawal agreement, but only to
the citizens’ rights provisions. According to Article 168, this provision will
only apply from the end of the transition/implementation period. However,
unlike Article 151, it will not expire after eight years.

Comment: As far as I know this explicit power to intervene in a
national court proceeding is novel, although it could be compared to the
Commission’s power to make observations in EFTA Court proceedings. It overlaps
with the Authority’s power to bring cases, and (for a number of years) with the
UK courts’ ability to ask the CJEU questions about the citizens’ rights in Part
Two.

Article 156

Regular dialogue and
exchange of information

In order to facilitate the
consistent interpretation of this Agreement and in full deference to the
independence of courts, the Court of Justice of the European Union and the
United Kingdom's highest courts shall engage in a regular dialogue, analogous to
the one which the Court of Justice of the European Union pursues with the
highest courts of the Member States.

Background: This Article partly reflects para 39 of the Joint
Report, which states: “Consistent interpretation of the citizens' rights Part
should further be supported and facilitated by an exchange of case law between
the courts and regular judicial dialogue.” However, Article 156 is not limited
in scope to citizens’ rights, and makes no express reference to exchange of
case law (or any other “information” referred to in the title of the Article). According
to Article 168, this provision will only apply from the end of the
transition/implementation period.

Comments: It seems odd that there is no exchange of information
or case law provided for, especially as the EU has other treaties with non-EU
states which provide for such exchanges. I suggest an amendment, to add
a new sentence at the end of this Article: The Joint Committee shall
establish a mechanism to ensure regular mutual transmission of case law and
other information relevant to this Agreement.

TITLE II

INSTITUTIONAL
PROVISIONS

Article 157

Joint Committee

1.A Joint Committee is hereby established,
comprising representatives of the Union and of the United Kingdom. The Joint
Committee shall be co-chaired by the Union and the United Kingdom.

2.The Joint Committee shall meet at least once
a year or at the request of the Union or the United Kingdom. The Joint
Committee shall set its meeting schedule and its agenda by mutual consent.

3.The Joint Committee shall be responsible for
the implementation and application of this Agreement. The Union or the United
Kingdom may refer to the Joint Committee any issue relating to the
implementation, application and interpretation of this Agreement.

4.The Joint Committee shall:

(a)supervise and facilitate the implementation
and application of this Agreement;

(b)decide on the tasks of the specialised
committees and supervise their work;

(c)seek appropriate ways and methods of
preventing problems that might arise in areas covered by this Agreement or of
resolving disputes that may arise regarding the interpretation and application
of this Agreement;

(d)adopt its own rules of procedure, as well as
rules of procedure of the specialised committees;

(e)consider any matter of interest relating to
an area covered by this Agreement;

(f)adopt decisions and make recommendations as
set out in Article 159;

(g)adopt amendments to this Agreement in the
cases provided for in this Agreement.

5. The Joint Committee may:

(a)delegate responsibilities to the specialised
committees, except those referred to in points (b), (d), (f) and (g) of
paragraph 4;

(b)establish other specialised committees than
those established by Article 158 in order to assist it in the performance of
its tasks;

(c)change the tasks assigned to the specialised
committees or dissolve any of those committees; and

(d)take such other action in the exercise of its
functions as decided by the Union and the United Kingdom.

6.The Joint Committee shall issue an annual
report on the functioning of this Agreement.

Comment: The Joint Committee has a number of functions under the
Agreement, not just in relation to citizens’ rights. Its main explicit role in
that area will be updating the social security annex and (potentially) being a
forum for dispute settlement – see Articles 162 to 165 below.

Article 158

Specialised
committees

1. The following specialised
committees are hereby established:

(a) the Committee on citizens'
rights;

(b) the Committee on the other
separation provisions;

(c) the Committee on issues
related to the island of Ireland;

(d) the Committee on Sovereign
Base Areas related issues;

(e) the Committee on the
financial provisions.

2. Unless otherwise provided in
this Agreement, or unless the co-chairs decide otherwise, the specialised
committees shall meet at least once a year. Additional meetings may be held at
the request of the Union, the United Kingdom, or of the Joint Committee. They
shall be co-chaired by representatives of the Union and of the United Kingdom.
The specialised committees shall set their meeting schedule and agenda by
mutual consent. The specialised committees may draw up draft decisions and
recommendations and refer them for adoption by the Joint Committee.

3. The Union and the United
Kingdom shall ensure that their respective representatives on the specialised
committees have the appropriate expertise with respect to the issues under
discussion.

4. The specialised committees
shall inform the Joint Committee of their meeting schedules and agenda
sufficiently in advance of their meetings and shall report to the Joint
Committee on results and conclusions from each of their meetings. The creation
or existence of a specialised committee shall not prevent the Union or the
United Kingdom from bringing any matter directly to the Joint Committee.

Comment: Note that one of the specialised committees concerns
citizens’ rights. It is likely to meet for some time into the future, given the
long time frame of the application of Part Two of the Agreement.

Article 159

Decisions and
recommendations

1.The Joint Committee shall, for the purposes
of this Agreement, have the power to adopt decisions in respect of all matters
for which this Agreement so provides and make appropriate recommendations to
the Union and the United Kingdom.

2.The decisions adopted by the Joint Committee
shall be binding on the Union and the United Kingdom, and the Union and the
United Kingdom shall implement them. They shall have the same legal effect as
this Agreement.

3.The Joint Committee shall adopt its decisions
and make its recommendations by mutual consent.

Comment: the only power to adopt decisions which the Joint
Committee has in the area of citizens’ rights is to adopt new social security
rules pursuant to Article 31, although its dispute settlement powers (discussed
below) might be relevant. So might its recommendations, although there is no
explicit reference to them in the citizens’ rights part.

TITLE III

DISPUTE SETTLEMENT

Article 160

Cooperation

The Union and the United Kingdom
shall, at all times, endeavor to agree on the interpretation and application of
this Agreement, and shall make every attempt through cooperation and
consultations to arrive at a mutually satisfactory resolution of any matter
that might affect its operation.

Comment: This is a “best endeavours” Article that points toward
trying to find political solutions to disputes. It does not include any specific
legal obligations but could nevertheless be relevant in practice, given that
disputes under the EU’s free trade agreements are usually settled
diplomatically.

Article 161

Exclusivity

For any dispute between the Union
and the United Kingdom arising under this Agreement, the Union and the United
Kingdom shall only have recourse to the procedures provided for in this
Agreement.

Comment: This Article prevents using other means besides those
in the Agreement to settle disputes, unless the Agreement itself is amended.

Article 162

Settlement of
disputes

1. Without prejudice to Article
153, the Union or the United Kingdom may bring any dispute which concerns the
interpretation or application of this Agreement before the Joint Committee.

2. The Joint Committee may settle
the dispute through a recommendation. It shall be provided with all information
which might be of use in making possible an in-depth examination of the
situation, with a view to finding an acceptable solution. To this end, the
Joint Committee shall examine all possibilities to maintain the good
functioning of the Agreement.

3. The Joint Committee may, at
any point, decide to submit the dispute brought before it to the Court of
Justice of the European Union for a ruling. The Court of Justice of the
European Union shall have jurisdiction over such cases and its rulings shall be
binding on the Union and the United Kingdom.

4. If the dispute has not been
settled within three months after it was brought before the Joint Committee and
has not been submitted to the Court of Justice of the European Union by the
Joint Committee pursuant to paragraph 3, the dispute may be submitted to the
Court of Justice of the European Union for a ruling at the request of either
the Union or the United Kingdom. The Court of Justice of the European Union
shall have jurisdiction over such cases and its rulings shall be binding on the
Union and the United Kingdom.

Comments: According to Article 168, this provision will only
apply from the end of the transition/implementation period. The dispute settlement
clause applies to the entire Agreement, not only the citizens’ rights rules.
This text has clearly been adapted from Article 111 of the EEA
treaty. Para 1 is identical (except for the names of the parties,
obviously). Para 2 is identical except for the addition of the words “through a
recommendation”. Paras 3 and 4 differ, however: under the EEA Treaty, the EEA
Joint Committee can agree to ask the CJEU about a treaty rule which is identical
to EU law after three months’ discussion (not at any time); and if
the dispute is not resolved or sent to the CJEU after six months’ discussion,
then one party can take a form of safeguard measure or disapply a part of the
EEA rules due to divergence with the other party. It’s also specified that the
CJEU rules are binding, although that simply restates the ruling of the CJEU in
Opinion 1/91 that its rulings must always be binding. It will be necessary to
decide which EU institution decides to bring proceedings on behalf of the EU.

In comparison then, the version of the Withdrawal Agreement places far
more reliance on the CJEU: allowing earlier recourse if both sides agree;
unilateral recourse after three months; jurisdiction over all the agreement,
not just the EU law aspects (although admittedly much of the agreement refers
to EU law); and eliminating the possibility of settling a dispute by means of a
safeguard or divergence decision instead – although Article 165 provides for a
sanction by the EU side only during the transition/implementation period,
and there is an odd disconnected sanctions clause in Article 163(3). This
provision overlaps with the jurisdiction of the Court over citizens’ rights
that will apply for eight years after the end of the transition/implementation
period. The CJEU jurisdiction in this Article would be subject to the rules of
procedure to be set out in an Annex (see Article 164).

This proposal is problematic because it is one-sided, diverging from
the solution in the EEA which the EU found legally and politically acceptable.
(Suggesting a rather different approach to a similar issue could reasonably be
seen as a form of “cherry-picking”).While it would be a breach of EU law to set up a system which lets
arbitrators et al make the final decision on interpretation of EU law for the
EU (see Opinion
1/92), the EEA system was found compatible with EU law in that judgment and
the obvious question is why not follow that route here – which would mean a
form of sanction by either side instead of recourse to the ECJ? Also, why give
the ECJ jurisdiction to rule on issues in the withdrawal agreement which are
not EU law issues – given that there is no EU law requirement to give it such
jurisdiction even where the EU would be bound by an interpretation of such
rules?

I suggest the following amendments, which would bring the text
in line with the EEA model and be consistent with the limits set out by the ECJ
in Opinion 1/92.

2. The Joint Committee may settle the
dispute through a recommendation, which shall not affect the case law of theCourt of Justice of the European Union….

3. If the dispute concerns the
interpretation of Union law, the Joint Committee may, at any point….

4. If the dispute has not been settled
within three months after it was brought before the Joint Committee and has not
been submitted to the Court of Justice of the European Union by the Joint
Committee pursuant to paragraph 3, either party may take a safeguard measure.
Such safeguard measures shall be restricted with regard to their scope and
duration to what is strictly necessary in order to remedy the situation.Priority shall be given to such measures as
will least disturb the functioning of this Agreement.

If there is a dispute concerning the
scope or duration of safeguard measures, either party may refer the dispute to
arbitration under the procedures laid down in Protocol [xx].No question of interpretation of the
provisions of this Agreement concerning Union law may be dealt with in such
procedures.The arbitration award shall
be binding on the parties to the dispute.

Article 163

Non-compliance

1. Where the Union or the United
Kingdom consider that the other has not taken the necessary measures to comply
with the judgment of the Court of Justice of the European Union resulting from
proceedings referred to in Article 162, either the Union or the United Kingdom
may bring the case before the Court of Justice of the European Union. The Court
of Justice of the European Union shall have jurisdiction over such cases and
its rulings shall be binding on the Union and the United Kingdom.

2. If the Court of Justice of the
European Union finds, in proceedings brought before it pursuant to paragraph 1,
that the Union or the United Kingdom, as the case may be, has not complied with
its judgement, it may impose a lump sum or penalty payment on it.

3. The Union or the United
Kingdom may decide to suspend:

(a) parts of this Agreement other
than Part Two; or

(b)parts of any other agreement between the
Union and the United Kingdom, under the conditions set out in such agreement.

Any suspension under this
paragraph shall be proportionate to the breach of obligation concerned, taking
into account the gravity of the breach and the rights in question. It shall be
subject to judicial review by the Court of Justice of the European Union.

Comments: According to
Article 168, this provision will only apply from the end of the
transition/implementation period. The CJEU jurisdiction in this Article would
be subject to the rules of procedure to be set out in an Annex (see Article
164).

Paragraphs 1 and 2 are similar to Article 260(2) TFEU, which provide
for the Commission to sue a Member State if it has allegedly not implemented a
prior ruling in an infringement case. The text here differs in that: the prior
judgment would not be an infringement case, but a dispute settlement ruling
pursuant to Article 162 of the Agreement; the EU as such or the UK would bring
the case, rather than the Commission; there is no reference to the obligation
in Article 260 TFEU to giving the defending party “the opportunity to submit
its observations” before the case is brought; and the plaintiff does not have
to specify the lump sum or penalty which it wants the Court to impose.

For eight years, this provision would overlap with the Court’s special
jurisdiction over citizens’ rights in Article 151 of this Agreement.

Paragraph 3 is quite different from Article 260 TFEU, and the legal
drafting here is….unimpressive. Is this an alternative remedy instead of
applying for a lump sum or penalty payment? Or an additional one after, before
or alongside a court challenge? Implicitly (but not very clearly) the grounds
for applying this rule would be a “breach of obligation” – what obligation
though? There is no explicit reference to paragraphs 1 or 2.

In the absence of a cross-reference to Article 162, there’s no explicit
obligation to consult and try to reach a solution before enforcing this
penalty. It would overlap with Article 151 (citizens’ rights) andArticles 162 and 163(1) and (2). The one
clear point is that it can’t be used to suspend the citizens’ rights
provisions; although presumably a breach of those provisions could be used to
trigger it. Remarkably, it could be used to suspend “any other agreement
between” the EU and the UK, although this overreach is immediately rendered
pointless by the proviso that this only applies “under the conditions set out
in such agreement”.

Needless to say, I propose an amendment to delete this
diabolical paragraph. In fact, my proposed amendment to Article 162 would
mean that the rest of the Article would be superfluous too.

Article 164

Procedural rules and
powers

Proceedings brought to the Court
of Justice of the European Union pursuant to Article 162 or 163 shall be
governed by the Rules of Procedure set out in [Annex y+3] to this Agreement.

Comment: This annex has not yet been filled in. According to
Article 168, this provision will only apply from the end of the
transition/implementation period.

Article 165

Suspension of
benefits during the transition period

1.Notwithstanding Article 126 of this
Agreement, if during the transition period the Union considers that the United
Kingdom has not fulfilled, during the transition period, an obligation under
Union law as found in a judgment rendered pursuant to Article 126 of this
Agreement in accordance with Article 258 TFEU, or that the United Kingdom does
not respect an order rendered pursuant to Article 126 of this Agreement in
accordance with Article 279 TFEU, and where the functioning of the internal
market, of the customs union, or the financial stability of the Union or its
Member States would be jeopardised as a result, the Union may suspend certain
benefits deriving for the United Kingdom from participation in the internal
market.

2.When applying paragraph 1, the Union shall
take into account the possible consequences of such a suspension on the rights
and obligations of natural and legal persons. Any suspension under paragraph 1
shall be proportionate to the breach of obligation concerned, taking into
account the gravity of the breach and the rights in question, and shall not
exceed three months. It may, however, be renewed.

3.The Union shall inform the United Kingdom of
its intention to apply paragraph 1 and allow the United Kingdom, within 20
days, to remedy the situation. Any suspension shall take effect no earlier than
20 days after its notification to the United Kingdom.

Background: The possibility of this clause was mooted when the
Commission proposed Articles on the transition/implementation period. It is now
limited to cases where the ECJ has already ruled in an infringement proceeding.

Comments: For the reasons set out in the main comments in this
blog post, I suggest the simple amendment of deleting this Article.
For convenience, in summary those arguments are: a) it’s unnecessary because
the usual jurisdiction of the ECJ will apply, including the remedy of the ECJ
imposing fines for lack of compliance with its prior rulings; b) there’s no
time limit problem here, since cases against the UK pending at the end of the
transition/implementation period will be decided afterward; c) the proposal
assumes that only the UK could breach EU law, not the EU27; d) it would treat
the UK as both a Member State and a non-Member State at the same time; e) there
is no proviso for attempting to resolve the dispute politically; f) it
circumvents the usual requirement for the party alleging the breach to
discharge the burden of proof of proving its claim in the ECJ; and g) there’s
no provision for judicial review or arbitration concerning the decision.

TITLE IV

FINAL PROVISIONS

Article 166

Annexes

Protocols [1 to N] and Annexes [y to y+x] shall form an
integral part of this Agreement.

Comment: Only
the Protocol on Ireland and a few Annexes have been filled in.

Article 167

Authentic texts

This Agreement, drawn up in a
single original in the Bulgarian, Croatian, Czech, Danish, Dutch, English,
Estonian, Finnish, French, German, Greek, Hungarian, Irish, Italian, Latvian,
Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish
and Swedish languages, the texts in each of these languages being equally
authentic, shall be deposited in the archives of the Council, which shall
transmit a certified copy to the United Kingdom.

Comment: Provisions on
authentic language versions are standard clause in treaties. Bilateral treaties
between the EU and non-EU countries are always valid in the languages of all
Member States and the non-Member State too. In case of conflict between
language versions, the ECJ looks at a number of them to determine the overall
intention of the drafters, including (where relevant) the non-EU language
version.

Article 168

Entry into force and
application

This Agreement shall enter into
force on 30 March 2019.

Parts Two and Three, with the
exception of Articles 30(1) and 40, as well as Title I of Part Six and Articles
162, 163 and 164, shall apply as from the end of the transition period.

The Protocol on Ireland/Northern
Ireland, with the exception of Article 10 thereof, shall apply as from the end
of the transition period.

The Protocol relating to the
Sovereign Base Areas in Cyprus shall apply as from the end of the transition
period.

Comment: Although the Agreement will enter into force on Brexit
day, many parts of it would only apply from the end of the
transition/implementation period: Part Two on citizens’ rights (except a
provision on participation in social security discussions), Part Three on
separation provisions (except a provision on transferring files to authorise
pharmaceuticals etc), the Protocols on Ireland and Cyprus bases (except the
specialised committee on Ireland would be set up from Brexit day); the Part Six
provisions on the ECJ and most dispute settlement clauses.

As noted above, it is objectionable that Article 152 (which sets up the
Authority designed to help with applying EU27 citizens’ rights in the UK) will
only apply from the end of the transition/implementation period, because EU27
citizens may need its assistance before then. I therefore propose an amendment,
so that the second paragraph reads “…as well as Title I of Part Six (with
the exception of Article 152) and…”

Conversely, although not mentioned here, some parts of the agreement will
expire at the end of the transition/implementation period: for instance,
Part Four (which concerns that period), and Article 165 (sanctions during the
transitional period).

2 comments:

I wonder if the Danish practice of requiring their courts to seek the advice (and impliedly the permission) of the government Judicial Committee before making references could be challenged on the same basis?